DHS Halts Extra Guestworker Visas As Unemployment Jumps

By Suzanne Monyak
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Law360 (April 2, 2020, 6:52 PM EDT) -- Businesses will no longer be able to bring on new migrant workers under the H-2B visa program, the U.S. Department of Homeland Security said Thursday as the spread of the new coronavirus spurred 10 million initial unemployment claims.

DHS said on Twitter that it had put "on hold" a rule that would have authorized 35,000 additional H-2B visas for employers who didn't win a coveted H-2B visa in the federal government's lottery, including 20,000 for April 1 start dates.

"DHS's rule on the H-2B cap is on hold pending review due to present economic circumstances. No additional H-2B visas will be released until further notice," the tweet said.

The tweet was posted the same day the U.S. Department of Labor announced that 6.6 million people filed for unemployment in a week alone, as businesses shutter in response to the coronavirus pandemic.

DHS added that it is "looking at additional measures to protect American workers now and when normal economic activity is able to resume in the future."

DHS had announced in early March that it would make room for an extra 35,000 H-2B workers, who are typically requested by employers in the hospitality, landscaping, construction and seafood processing industries, after nearly 100,000 workers were requested for just 33,000 remaining slots earlier this year. The department had yet to issue a final rule authorizing the extra visas.

Of those extra visas, 10,000 were reserved for citizens of El Salvador, Guatemala and Honduras, the three countries comprising the Northern Triangle region that have struck deals with the Trump administration to accept U.S. asylum seekers.

Before the virus struck the U.S., national unemployment was low, hovering below 4% in both January and February of this year, when employers submitted requests to the Labor Department for seasonal workers starting in April.

With H-2B visas capped at 66,000 per fiscal year, demand for these temporary visas, which are granted to employers who can show there are no Americans willing or available to fill the jobs, has consistently outstripped supply.

DHS has had to authorize additional H-2B visas each year since 2017 to offer relief to those employers who rely on guestworkers to run their businesses but didn't get lucky in the lottery.

The H-2B visa program has garnered support from both sides of the aisle. A bipartisan group of nearly 200 lawmakers in both the House and Senate wrote a letter to DHS in January urging the department to grant enough visas to meet the needs of nearly all the businesses that requested them.

Now, with those extra visas paused, employers who lost out in the Labor Department's January lottery won't be able to hire those additional workers.

A spokesperson for U.S. Citizenship and Immigration Services confirmed on Thursday that the agency is continuing to process requests for H-2B visas that are exempt from the annual cap, which includes current H-2B workers seeking to extend their time in the U.S., workers in the fish roe industry and workers in the Northern Mariana Islands and Guam.

L.J. D'Arrigo, an Albany-based immigration attorney with Harris Beach PLLC, told Law360 that while some of his clients in the hospitality and horse racing industries will no longer need the extra workers due to the pandemic, many employers in industries deemed essential still need the help. In some states, for example, landscaping and construction are deemed essential businesses.

Even employers who did secure visas in the lottery may find themselves without their requested workers if they didn't get them approved by the U.S. Department of State before the consulates ceased routine visa processing and in-person interviews. The State Department has said that it may waive the in-person requirement for some migrant guestworkers to allow those visas to be processed after the agricultural industry warned of possible food shortages without migrant farmworkers.  

Jay Ruby of Greenberg Traurig LLP also noted that higher U.S. unemployment won't necessarily resolve labor shortages in industries like landscaping and crabbing. 

"A lot of the H-2B occupations are ones that U.S. workers forego even in economic downturns," he said.

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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